Bombay High Court
The Hongkong And Shanghai Banking ... vs The Union Of India on 30 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
502-CONPWL-350-2024.DOC
.Ashvini Narwade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION (L) NO. 350 of 2024
WITH
INTERIM APPLICATION NO. 2336 OF 2024
IN
WRIT PETITION NO. 3698 OF 2023
The Hongkong and Shanghai Banking Corporation ... Petitioner
Limited
Versus
Union of India ...Respondents
Mr. Abhishek Rastogi a/w. Mr. Pratyushprava Saha for the Petitioner.
Mr. M. P. Sharma a/w. Ms. Mamta Omle for Applicant in IAL/2336/2024
& for Respondent in Conpwl/350/2024.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 30th JANUARY, 2024
_______________________
P.C.
1. This Contempt Petition filed by the Petitioner - the Hongkong and
Shanghai Banking Corporation Ltd. (for short "HSBC") alleging that there is
intentional disobedience of the Judgment and Order dated 8 th November 2023
passed by a co-ordinate bench of this Court in Writ Petition (L) No. 24184 of
2023.
2. By such Judgment and Order this Court had allowed the Writ Petition
filed by the HSBC in terms of prayer clauses (a) and (b) and in terms of the
directions as set out in paragraph 35 of the Judgment that the refund of the
subject amounts be granted to the HSBC along with applicable interest within
a period of four weeks from the day a copy of the Judgment is available to the
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parties. Prayer clauses (a) and (b) as also the operative portion of the Judgment
and Order in paragraphs 35 and 36 read thus:-
"a) issue a Writ of Certiorari or a Writ in the nature of Certiorari or any
other writ, order or direction to quash the Order-in-Original No.
Refund/ Bipin/ 09/ 2023-24 dated 19 June 2023 that is violative of
Article 265 and 300A of the Constitution of India.;
b) issue a Writ of Mandamus or a Writ in the nature of Mandamus or
any other writ, order or direction under Article 226 ofthe Constitution
oflndia to declare that the retention of deposit of Rs.56,19,84,075
towards service tax and interest made 'under protest' to the
Respondents is without authority of law and liable to be refunded
along with interest"
"35. In the light of the above discussion, the petition needs to succeed.
It is accordingly allowed in terms of prayer clauses (a) and (b). Refund
of the amount be granted to the petitioner as ordered along with
applicable interest within a period of four weeks from the day a copy
of this order is available to the parties.
36. Rule is made absolute in the above terms. No costs."
3. It is not in dispute that the Judgment and Order of the Court was
available on 23rd November 2023, thus, within a period of four weeks from the
date of the said Judgment and Order the Respondents/Contemnors ought to
have complied with the directions of the Court as noted by us hereinabove.
However, despite such time of four weeks expired on 24 th December 2023, as
the amounts were not paid as directed by this Court, the Petitioners on 2 nd
January 2024 filed the aforesaid Contempt Petition alleging that there is a clear
disobedience/breach of the orders passed by this Court, which according to the
Petitioner was intentional. The Petitioner has contended that there was no
reason whatsoever for the Respondents/Contemnors not complying with the
said Orders passed by this Court. It is contended that even if the Respondents
intended to assail the said order by approaching the Supreme Court, and if the
Respondents are to succeed in such proceedings, HSBC was always good for its
money and same could not have been returned. It is thus contended that this
would however not mean that merely because of Respondents are Government
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Authorities, they would not be bound by the Orders of this Court and/or not
comply with the binding Orders passed by this Court when the same are valid
and subsisting. It is submitted that such approach of the Respondents is
manifestly illegal and contrary to the settled law that merely an intention to file
proceedings or simplicitor filing of the proceedings before the higher forum
ipso facto can never amount to stay of a binding order.
4. When the proceedings were listed before us on the earlier occasion, on
12th January 2024, after having heard learned Counsel for the parties, we had
passed the following order:-
"1. We have heard Mr. Rastogi, learned counsel for the petitioner on
the contempt petition.
2. The contempt alleged is of the judgment and order dated 08
November, 2023 passed by a co-ordinate Bench of this Court of which
one of us (G. S. Kulkarni, J.) was a member on the aforesaid writ
petition, whereby in terms of paragraph 35, the Court had allowed the
writ petition filed by the petitioner in terms of prayer clauses (a) and
(b) and had directed that the refund of the amount be granted to the
petitioner as ordered along with applicable interest within a period of
four weeks from the day a copy of the said order was made available to
the parties. Copy of the order was made available on 23 November,
2023. The respondents/ contemnors were served with the copy of the
order by the petitioner on 27 November, 2023. The case of the
petitioner is that within the time period of four weeks as granted by
this Court, the order ought to have been implemented. Referring to
the decision of the Supreme Court in Maninderjit Singh Bitta Vs.
Union of India & Ors.1, Mr. Rastogi submits that the respondents can
be no exception in not complying with the orders passed by this Court.
He has also drawn our attention to the letter dated 21 December, 2023
of the Assistant Commissioner Shri. Sudhakar Khobragade as
addressed to the petitioner wherein he records that as informed by the
legal Section, the Commissioner has not accepted the judgment and
order dated 08 November, 2023 passed by this Court and has decided
to challenge the same. It is Mr. Rastogi's contention that the language
of the concerned officer in the said letter itself shows the dis-regard of
the said officer to the orders passed by this Court. He also submits that
there is no application filed on behalf of the respondents seeking
extension of time to comply with the orders for any reason as may be
permissible in law. He accordingly submits that this is a clear case
where the Court ought to exercise contempt jurisdiction and proceed to
initiate an appropriate action against the respondents under the
contempt of Courts Act.
3. On the other hand, Mr. Sharma, learned counsel for the
respondents, on instructions, states that the Department is in the
1(2012) 1 SCC 273
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process of filing a Special Leave Petition which is so far not filed. He
would not dispute that the orders passed by this Court have thus
become binding. It is also not in dispute that no application for
extension of time as granted by this Court has been filed.
4. In the aforesaid circumstances, we are of the opinion that a notice
before admission be issued to the respondents/contemnors, as to why
the contempt petition be not admitted. Let a reply affidavit, if any pre-
admission, be placed on record within a period of two weeks from
today. Let a copy of the reply affidavit be served on the advocate for
the petitioner well in advance.
5. Stand over to 25 January, 2024."
5. After the aforesaid order was passed, as the Petitioner would contend as
an after thought the respondents moved an Interim Application No.2366 of
2024 in the Writ Petition, titled as an Application under order 41 Rule 5(2) of
the CPC, seeking time to stay operating part of impugned Judgment and Order
dated 8th November 2023. The title of the Application reads thus:-
"Application under order 41 5(2) of CPC 1908 seeking time to
stay operating part of impugned order dated 08/11/2023 till the
filing of SLP in Hon'ble Supreme Court"
6. The prayers as set out in the said Application are quite peculiar. The
Application states that the Respondents are filing a Special Leave Petition (for
short "SLP") before the Hon'ble Supreme Court. It is also stated that the
Respondents would pay such sum by way of damages or cost as the Court may
award as compensation in the event of HSBC being prejudiced by any order
that may be made on such Interim Application. Such contention is also
peculiar.
7. Be that as it may, as noted by us in our Order dated 12 th January 2024,
the Assistant Commissioner is very clear in stating that the Respondents are
not inclined to comply with the Orders passed by this Court. Such statement of
the concerned officer itself would show lack of respect to the Orders passed by
this Court by the Government official. As held by the Supreme Court respect
to the Orders of the Court and its majesty should not only be seen in what is
being written but it should be real and genuine, coming from the heart of the
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contemnors. However, we are in difficult times when concerned with such
issues. In our opinion, the officials are neither trained nor any inculcaltion is
imbibed in them, to respect the Orders passed by the Courts in the manner the
rule of law would mandate. If we ponder, at the history this was never the
scenario, that the orders passed by the Court could be disregarded and not
complied. A bonfide litigant would approach the Court before the timelines as
ordered by the Court would expire seeking an extension on justifiable grounds
and not as an after thought.
8. We may observe that in the present case by our order dated 12 th January
2024, we had issued notice before admission as also the Court granted liberty
to the Respondents/contemnors to place on record Reply Affidavit at the pre-
admission stage. In pursuance of such directions, Reply Affidavit on behalf of
the Respondents is placed on record of Shri. Arvind Singh Chauhan, Assistant
Commissioner CGST & Central Excise, Mumbai. The Affidavit reiterates that
the Department is in the process of assailing the Orders passed by this Court
and sets out different steps that have been taken in that regard. What is
peculiar are the averments in paragraph 4(h) to contend that there is no wilful
disobedience. Such statements read thus:-
"h) I say there has been no wilful disobedience or
deliberate attempt on part of respondents towards non-
compliance of order dated 08.11.2023. I say that as stated above a
mandatory process had to be followed & unless once receives a
confirmation on the decision, then respondent is left with no
other alternative but to wait from the board/finance ministry to
confirm & that was a reason that it took time for the respondents
to take steps praying for stay on the operation of the order."
9. On the above conspectus, having heard learned Counsel for the parties
and having noted the clear directions as passed by this Court, as also, the
justification which the Respondents intend to furnish in the Reply Affidavit
filed to the Contempt Petition, we may observe that the law would require as
not to be satisfied with the reasons set out in the reply Affidavit to be any
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justification in not complying with the Orders passed by this Court which are
clear, unambiguous, valid and subsisting.
10. It cannot be a situation that merely because the Respondents are Official
Respondents, and only because they are required to undertake some
departmental procedure to assail the orders passed by this Court, such orders
would cease to be binding on the department. It is also not a case that HSBC is
such an entity from which it would be impossible for the Respondents to
recover the amounts even if the order passed by this Court is set aside in any
further proceedings.
11. Thus, in our prima-facie opinion, as the things would stand, the
Respondents without any valid justification in law, do not intend to comply
with the orders passed by this Court. Even the Interim Application, by the
Respondents seeking stay of the Judgment and Orders is a belated attempt,
and, on the face of it, appears to be not maintainable.
12. We have already passed an Order issuing notice before admission,
however, before we take the proceedings further, as and by way of last
opportunity, we direct the Respondents to purge the contempt and comply
with our Judgment and Order within one week from today, failing which there
would be no alternative but to proceed to pass further appropriate orders on
the contempt proceedings as the law would mandate.
13. This order be orally informed by the learned advocate for the revenue to
the concerned officer, as transcribing of the order would take sometime.
14. Accordingly, stand over to 6th February 2024.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)
30th January, 2024
